Smith v. Cain et al

Filing 43

ORDER denying 38 Motion for Relief from a Final Judgment, Order, or Proceeding. Signed by Judge Nannette Jolivette Brown on 12/27/2016. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JEROME SKEE SMITH

CIVIL ACTION

VERSUS

NO. 13-3923

N. BURL CAIN, WARDEN

SECTION: “G” (3)

ORDER
Before the Court is the State’s “Rule 60(b) Motion for Relief from a Final Judgment, Order,
or Proceeding,”1 requesting reconsideration of this Court’s September 22, 2016 Order finding that
Petitioner Jerome Skee Smith (“Petitioner”) is entitled to equitable tolling for the two day delay in
filing his habeas corpus petition.2 No opposition to the pending motion was submitted, timely or
otherwise. Accordingly, this motion is deemed unopposed. District courts may grant an unopposed
motion as long as the motion has merit.3 Having reviewed the motion, the memorandum in support,
and the applicable law, the Court will deny the motion.
I. Background
A.

Factual Background
On May 15, 1986, a jury in the Orleans Parish Criminal District Court found Petitioner

guilty of first degree murder.4 On May 30, 1986, the trial court sentenced Petitioner to a term of

1

Rec. Doc. 38.

2

Rec. Doc. 32.

3

Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001).

4

State Rec., Vol. XV of XXIII, Minute Entry, May 15, 1986.
1

life imprisonment without the benefit of probation, parole, or suspension of sentence.5 On July 13,
1987, the Louisiana Fourth Circuit Court of Appeal affirmed Petitioner’s conviction and sentence.6
The Louisiana Supreme Court subsequently denied his writ application on January 29, 1988.7
After unsuccessfully seeking post-conviction relief in state court, Petitioner filed his first
federal habeas petition in 1997, which was denied on March 17, 1998.8 Thereafter, Petitioner
unsuccessfully sought post-conviction relief in the state courts on numerous occasions. The
Louisiana Supreme Court denied relief on Petitioner’s final state post-conviction relief application
on May 18, 2012.9
On March 11, 2013, the United States Fifth Circuit Court of Appeals granted Petitioner
authorization to file a second, successive habeas petition pursuant to 28 U.S.C. § 2244.10 Petitioner
filed the instant application for habeas relief on May 22, 2013.11 The State filed a response arguing
that the application is untimely.12
On August 7, 2015, the Magistrate Judge issued a Report and Recommendation,
recommending that the Court dismiss Petitioner’s claims with prejudice as untimely.13 Petitioner
filed objections to the Report and Recommendation, arguing, inter alia, that he was entitled to

5

State Rec., Vol. XV of XXIII, Minute Entry, May 30, 1986.

6

State v. Smith, 511 So.2d 1185 (La. App. 4th Cir. 1987); State Rec., Vol. VIII or XXIII.

7

State v. Smith, 519 So.2d 114 (La. 1988); State Rec., Vol. VIII of XXIII.

8

Smith v. Whitley, No. 97-1383 (E.D. La. Mar. 17, 1998); State Rec., Vol. XV of XXIII.

9

State ex rel. Smith v. State, 89 So.3d 1180 (La. 2012); State Rec., Vol. XXI of XXIII.

10

In re Smith, No. 13-30043 (5th Cir. Mar. 11, 2013); Rec. Doc. 1-1 at 271–73.

11

Rec. Doc. 1.

12

Rec. Doc. 18.

13

Rec. Doc. 26.
2

equitable tolling for the two day delay in filing his petition because he was placed on lockdown
and transferred to an area of the prison where he did not have access to his legal materials.14 The
State did not file a response to Petitioner’s objections.
B.

The Court’s September 22, 2016 Order
On September 22, 2016, the Court issued an Order rejecting the Magistrate Judge’s

recommendation that the Court dismiss Petitioner’s claims with prejudice as untimely.15 The Court
noted that 28 U.S.C. § 2244(d)(1)(D) provides that an application must be filed one year from
“the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.”16 Because neither party objected to the
Magistrate’s determination that Petitioner’s application must have been filed on or before Monday,
May 20, 2013, unless that deadline was extended through tolling, the Court adopted this
determination.17
The Court noted that Petitioner’s one-year statute of limitations period began to run on
May 18, 2012, when the Louisiana Supreme Court denied Petitioner’s last state post-conviction
application, and ran without interruption for the full 365 days until its expiration on May 20,

14

Rec. Doc. 27 at 2.

15

Rec. Doc. 32.

16

Id. at 9.

17

Id. at 10. In its original briefing, the State argued that Petitioner could have discovered this evidence no
later than August 9, 1992, the date on which Petitioner filed his supplemental post-conviction relief application in
state court, which was based on evidence contained in the District Attorney’s file. Rec. Doc. 18 at 17. However, the
Magistrate Judge determined that the petition must have been filed no later than May 20, 2013, and the State did not
object to that determination.
3

2013.18 Because no state applications were pending during that period, the Court determined that
Petitioner was not entitled to statutory tolling.19
The Court rejected Petitioner’s argument that he was entitled to equitable tolling because
he believed the Fifth Circuit would transmit a copy of his petition to this court for filing, noting
that “ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse
prompt filing.”20 Petitioner also argued that he was entitled to equitable tolling for the two day
delay in filing his petition because he was placed on lockdown on March 28, 2013, and on May 7,
2013 he was transferred to an area of the prison where he did not have access to his legal
materials.21 The Court noted that Petitioner’s mother called the district court on May 10, 2013, and
was informed that no petition was pending. Petitioner then contacted the Fifth Circuit for guidance,
and was advised that the Fifth Circuit would transfer an extra copy of the petition to this Court if
Petitioner paid for the postage.22 Petitioner’s mother paid the postage on May 20, 2013, but she
was informed that Petitioner must sign and date the petition.23 Petitioner received the petition on
May 22, 2013, signed and dated it, and placed it in the mailbox the same day.24 The Court
determined that Petitioner had presented sufficiently extraordinary circumstances that would make
it unduly harsh to bar Petitioner from having his case considered on the merits because of the

18

Rec. Doc. 32 at 10–11.

19

Id. at 11.

20

Id. at 12 (citing Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002)).

21

Id.

22

Id. at 14.

23

Id.

24

Id.
4

lockdown, he could not access his legal materials and the confusion regarding transfer of his case
from the Fifth Circuit.25 Accordingly, the Court found that Petitioner was entitled to equitable
tolling during this two day delay in filing his federal habeas petition, reasoning that a dismissal of
the petition as time-barred based on a strict application of the statute of limitations under these
circumstances would be unduly harsh and inequitable.26
Addressing the actual innocence exception, the Court noted that Petitioner pointed to four
items of new evidence that the State failed to disclose in violation of Brady v. Maryland.27 The
Court noted that the actual innocence standard requires a greater degree of confidence than does
the Brady violation analysis.28 Under the actual innocence analysis, the petitioner has the burden
of proving that the jury vote would have changed based on the new evidence, whereas the Brady
analysis only requires a reasonable probability that the outcome would have changed.29 Because
the Court found that Petitioner was entitled to equitable tolling, it did not determine whether this
new evidence was enough to establish a claim of actual innocence.30

25

Id.

26

Id.

27

Id. at 18–19.

28

Id. at 19 (citing Crayton v. Cain, No. 02-2162, 2013 WL 5305673, at *6 (E.D. La. Sept. 19, 2013); Ratliff
v. Steele, No. 12-01238, 2013 WL 3790630, at *8 (M.D. Tenn. Jul. 19, 2013), adopted, 2013 WL 4496507 (M.D.
Tenn. Aug. 19, 2013); Abara v. Palmer, No. 10-00623, 2013 WL 1182108, at *15 (D. Nev. Mar. 19, 2013)).
29

Id.

30

Id.
5

II. Parties’ Arguments
A.

The State’s Rule 60(b) Motion
The State moves for relief from the Court’s September 22, 2016 Order pursuant to Federal

Rule of Civil Procedure 60(b), which provides that a court may “relieve a party or its legal
representatives from a final judgment, order, or proceeding” in certain circumstances.31 The State
argues that Petitioner “dishonestly pleaded to this Court that circumstances beyond his control
prevented him from timely filing his petition.”32 The State asserts that Petitioner’s claim that he
was placed on lockdown on March 28, 2013, and that on May 7, 2013, he was transferred to an
area of the prison in which he did not have access to his legal materials is “patently false.”33
The State contends that records from the Louisiana Department of Safety and Corrections
(“DPSC”), an affidavit from an official with DPSC and an affidavit from an official with the
Louisiana State Penitentiary (“LSP”) show that on March 28, 2013, Petitioner was being housed
in the Oak 4 dormitory at LSP, where he had access to two locker boxes which contained his legal
materials.34 According to the State, on March 28, 2013, however, Petitioner was caught
committing “an aggravated sex offense, in violation of the DPSC’s rules and regulations,” and was
transferred the next day to maximum-security “administrative segregation” on cell block “D.”35
At that time, the State contends that Petitioner’s property, including the two locker boxes

31

Rec. Doc. 38-1 at 2.

32

Id.

33

Id. at 3.

34

Id. at 3–4.

35

Id. at 4.
6

containing his legal documents, was removed from his dormitory and placed in storage.36 The State
asserts that Petitioner could have requested his legal materials at any time.37 The State avers that
in April 2013, three separate Disciplinary Board hearings related to the aggravated sex offense
were held, and after being found guilty Petitioner was sentenced to the maximum-security Tiger 4
cell block of LSP.38 According to the State, on May 7, 2013, Petitioner was transferred to the Tiger
4 cell block, and at any time he could have requested, and received in a timely manner, his legal
materials.39 The State asserts that Petitioner remained in Tiger 4 until January 3, 2014.40
The State notes that Petitioner filed his habeas petition on May 22, 2013, while he was
being housed in Tiger 4.41 Even assuming that Petitioner did not have access to his legal materials
while in Tiger 4, the State asserts that this does not excuse his failure to file the petition between
March 11, 2013—the date the Fifth Circuit allowed Petitioner to file a successive petition—and
May 7, 2013.42
Moreover, the State asserts that Petitioner was placed in lockdown because of his actions.43
The State contends that “[h]olding that a self-inflicted lockdown warrants equitable tolling would
create a perverse incentive—a prisoner would be encouraged to commit a disciplinary infraction

36

Id.

37

Id.

38

Id.

39

Id.

40

Id.

41

Id.

42

Id.

43

Id. at 5.
7

when his AEDPA limitations date was fast approaching and he was not prepared to file his habeas
petition.”44
The State notes that many courts have held that intermittent lockdowns at some point
during the limitations period does not constitute extraordinary circumstances warranting equitable
tolling.45 In light of the evidence that Petitioner did have access to his legal materials, the State
argues that the Court should reconsider its finding that equitable tolling is warranted here.46
Finally, the State argues that Petitioner’s actual innocence claim is insufficient to overcome
the limitations period.47 The State asserts that the facts presented at Petitioner’s trial strongly
establish his guilt.48 Further, the State argues that much of the new evidence presented by Petitioner
does not conflict or is not otherwise inconsistent with the testimony given at trial.49
B.

Petitioner’s Opposition
Petitioner did not file a brief in opposition to the State’s motion.

44

Id.

45
Id. (citing Dodd v. United States, 365 F.3d 1273, 1283 (11th Cir. 2004); Sheppard v. Stephens, No. 160426, 2016 WL 4276292, at *2 (W.D. Tex. May 26, 2016); Beeson v. Stephens, No. 15-0854, 2015 WL 4622400, at
*2 (S.D. Tex. Jul. 30, 2015); Barbour v. Prince, No. 13-6207, 2014 WL 6901372, at *6 (E.D. La. Dec. 5, 2014)).
46

Id. at 5–6.

47

Id. at 6.

48

Id.

49

Id.
8

III. Law and Analysis
A.

Legal Standard
The State moves for relief from judgment pursuant to Federal Rule of Civil Procedure

60(b), which provides that the Court may relieve a party from a final judgment, order or proceeding
for the following reasons:
(1)

mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);

(3)

fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or

(6)

any other reason that justifies relief.

However, a final judgment has not been entered in this case. When a party seeks to revise an order
that adjudicates fewer than all the claims among all of the parties, Federal Rule of Civil Procedure
54(b) controls. Rule 54(b) provides in pertinent part:
[A]ny order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
Pursuant to Rule 54, a district court “possesses the inherent procedural power to reconsider,
rescind, or modify an interlocutory order for cause seen by it to be sufficient.”50 The Fifth Circuit

50

Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981).
9

has stated that a court may reconsider and reverse an interlocutory order for “any reason it deems
sufficient, even in the absence of new evidence or an intervening change or in clarification of the
new law.”51
Courts in this district generally evaluate Rule 54(b) motions to reconsider interlocutory
orders under the same standards that govern Rule 59(e) motions to alter or amend a final
judgment.52 Federal Rule of Civil Procedure 59(e) also allows courts to alter or amend its
judgments after entry. The Court has “considerable discretion” in deciding whether to grant a
motion for reconsideration, but must “strike the proper balance between two competing
imperatives: (1) finality and (2) the need to render just decisions on the basis of all the facts.”53
This Court’s discretion is further bounded by the Fifth Circuit’s instruction that reconsideration is
“an extraordinary remedy that should be used sparingly,”54 with relief being warranted only when
the basis for relief is “clearly establish[ed].”55 Courts in the Eastern District of Louisiana have
generally considered four factors in deciding motions for reconsideration under the Rule 59(e)
standard:
(1)

the motion is necessary to correct a manifest error of law or fact upon which the
judgment is based;

51

Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 171 (5th Cir. 2010) (citing Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir.1990), abrogated on other grounds by Little v. Liquid Air Corp.,
37 F.3d 1069 (5th Cir.1994)).
52

See S. Snow Mfg. Co. v. SnoWizard Holdings, Inc., 921 F. Supp. 2d 548, 565 (E.D. La. 2013) (Brown, J.)
(citing Castrillo v. Am. Home Mortg. Servicing, Inc., 2010 WL 1424398, at *3 (E.D. La. 2010) (Vance, J.); Rosemond
v. AIG Ins., No. 08–1145, 2009 WL 1211020, at *2 (E.D. La. May 4, 2009) (Barbier, J.); In re Katrina Canal Breaches,
No. 05–4182, 2009 WL 1046016, at *1 (E.D. La. Apr. 16, 2009) (Duval, J.)).
53

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).

54

Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).

55

Schiller v. Physicians Res. Grp, Inc., 342 F.3d 563, 567 (5th Cir. 2003); Castrillo v. Am. Home Mortgage
Servicing, Inc., No. 09-4369 R, 2010 WL 1424398, at *3 (E.D. La. Apr. 5, 2010) (Vance, J.).
10

(2)

the movant presents newly discovered or previously unavailable evidence;

(3)

the motion is necessary in order to prevent manifest injustice; or

(4)

the motion is justified by an intervening change in controlling law.56

A motion for reconsideration, “‘[is] not the proper vehicle for rehashing evidence, legal
theories, or arguments. . . .’”57 Instead, such motions “serve the narrow purpose of allowing a party
to correct manifest errors of law or fact or to present newly discovered evidence.”58 “It is well
settled that motions for reconsideration should not be used . . . to re-urge matters that have already
been advanced by a party.”59 When there exists no independent reason for reconsideration other
than mere disagreement with a prior order, reconsideration is a waste of judicial time and resources
and should not be granted.60 “A motion to reconsider based on an alleged discovery of new
evidence should be granted only if (1) the facts discovered are of such a nature that they would
probably change the outcome; (2) the facts alleged are actually newly discovered and could not
have been discovered earlier by proper diligence; and (3) the facts are not merely cumulative or
impeaching.”61

56

See, e.g., Castrillo v. Am. Home Mortg. Servicing, No. 09-4369, 2010 WL 1424398, at *4 (E.D. La. Apr.
5, 2010) (Vance, J.) (citations omitted).
57

Id. (quoting Templet v. HydroChem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004)).

58

See Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (citation and internal quotation marks

omitted).
59
Helena Labs. Corp. v. Alpha Sci. Corp., 483 F. Supp. 2d 538, 539 (E.D. Tex. 2007) (citing Browning v.
Navarro, 894 F.2d 99, 100 (5th Cir. 1990)).
60

Livingston Downs Racing Ass’n v. Jefferson Downs Corp., 259 F. Supp. 2d 471, 481 (M.D. La. 2002). See
also Mata v. Schoch, 337 B.R. 138, 145 (S.D. Tex. 2005) (refusing reconsideration where no new evidence was
presented); FDIC v. Cage, 810 F. Supp. 745, 747 (S.D. Miss. 1993) (refusing reconsideration where the motion merely
disagreed with the court and did not demonstrate clear error of law or manifest injustice).
61

Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 534 (5th Cir. 2015) (quoting Johnson v. Diversicare
Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010)).
11

B.

Analysis
Petitioner filed his federal habeas petition on May 22, 2013, two days after the expiration

of the limitations period. In its September 22, 2016 Order, the Court determined that Petitioner
was entitled to equitable tolling for the two day delay because Petitioner had been on lockdown,
did not have access to his legal materials and there was confusion regarding the transfer of his case
from the Fifth Circuit.62 The State argues that Petitioner “dishonestly pleaded to this Court that
circumstances beyond his control prevented him from timely filing his petition.”63 The State
asserts that Petitioner’s claim that he was placed on lockdown on March 28, 2013, and that on May
7, 2013, he was transferred to an area of the prison in which he did not have access to his legal
materials is “patently false.”64 Accordingly, the State argues that the Court should reconsider its
finding that equitable tolling is warranted here.65
The United States Supreme Court has expressly held that the AEDPA’s limitation period
is subject to equitable tolling.66 However, “a petitioner is entitled to equitable tolling only if he
shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”67 A petitioner bears the burden of
proof to establish entitlement to equitable tolling and “must demonstrate rare and exceptional

62

Rec. Doc. 32 at 14.

63

Rec. Doc. 38-1 at 2.

64

Id. at 3.

65

Id. at 5–6.

66

Holland v. Florida, 130 S.Ct. 2549, 2560 (2010).

67

Id. at 2562 (internal quotation marks omitted).
12

circumstances warranting application of the doctrine.”68 Equitable tolling is warranted “only in
situations where ‘the [petitioner was] actively misled . . . or [was] prevented in some extraordinary
way from asserting his rights.’”69
In support of its motion for reconsideration, the State relies on records from the Louisiana
DPSC, an affidavit from an official with DPSC, and an affidavit from an official with LSP. These
documents show that on March 28, 2013, Petitioner was being housed in the Oak 4 dormitory at
LSP, where he had access to two locker boxes which contained his legal materials.70 On March
28, 2013, however, Petitioner was caught committing “an aggravated sex offense, in violation of
the DPSC’s rules and regulations,” and was transferred the next day to maximum-security
“administrative segregation” on cell block “D.”71 At that time, Petitioner’s property, including the
two locker boxes containing his legal documents, was removed from his dormitory and placed in
storage.72 Both affidavits state that Petitioner could have requested, and received in a timely
manner, his legal materials at any time.73 In April 2013, three separate Disciplinary Board hearings
related to the aggravated sex offense were held, and after being found guilty Petitioner was
sentenced to the maximum-security Tiger 4 cell block of LSP.74 On May 7, 2013, Petitioner was

68

Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).

69

Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (quoting Coleman v. Johnson, 184 F.3d 398, 403
(5th Cir. 1999).
70

Rec. Doc. 38-4 at 2, 5.

71

Id.

72

Id.

73

Id.

74

Id.
13

transferred to the Tiger 4 cell block, where at any time he could have requested, and received in a
timely manner, his legal materials.75
In light of this alleged “new” evidence that Petitioner did have access to his legal materials,
the State argues that the Court should reconsider its finding that equitable tolling is warranted
here.76 As noted above, “[a] motion to reconsider based on an alleged discovery of new evidence
should be granted only if (1) the facts discovered are of such a nature that they would probably
change the outcome; (2) the facts alleged are actually newly discovered and could not have been
discovered earlier by proper diligence; and (3) the facts are not merely cumulative or
impeaching.”77
The State offers no explanation as to why this “new” evidence was not previously offered
to the Court. This information was clearly available to the State, and could have been discovered
earlier with proper diligence. The State was on notice of Petitioner’s arguments regarding his
entitlement to equitable tolling, but it failed to file any opposition to Petitioner’s objections to the
Report and Recommendation. The State has not shown that this evidence is “the type of ‘new
evidence’ that a truly diligent litigant would be powerless to unearth” prior to the Court’s
September 22, 2016 Order.78
Moreover, even if this evidence was newly discovered, the State has not met its burden of
showing that consideration of these new facts would “probably change the outcome.”79 The

75

Id.

76

Rec. Doc. 38-1 at 5–6.

77

Ferraro, 796 F.3d at 534 (quoting Johnson, 597 F.3d at 673).

78

Id. at 535 (quoting Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir. 1995)).

79

Id. (quoting Johnson, 597 F.3d at 673).
14

Court’s equitable tolling determination was not only based on Petitioner’s lockdown, but also on
the confusion regarding the transfer of this case from the Fifth Circuit. The Fifth Circuit granted
Petitioner leave to file a successive habeas petition on March 11, 2013. On March 29, 2013,
Petitioner was transferred to maximum-security “administrative segregation,” and his legal
materials were placed in storage. At that time, Petitioner believed that his habeas petition had been
transferred to this Court by the Fifth Circuit. Petitioner’s mother called the district court on May
10, 2013, and was informed that no petition was pending. Petitioner then contacted the Fifth Circuit
for guidance, and was advised that the Fifth Circuit would transfer an extra copy of the petition to
this Court if Petitioner paid for the postage. Petitioner’s mother paid the postage on May 20, 2013,
but she was informed that Petitioner must sign and date the petition. Petitioner received the petition
on May 22, 2013, signed and dated it, and placed it in the mailbox the same day.
The State argues that the Court should find that Petitioner is not entitled to equitable tolling
because he was placed in lockdown due to a violation of DPSC rules.80 The State asserts that such
a holding would encourage a prisoner “to commit a disciplinary infraction when his AEDPA
limitations date was fast approaching and he was not prepared to file his habeas petition.”81 The
Court finds this argument unpersuasive as there is no indication that Petitioner committed the
infraction to extend the limitation period. Further, equitable tolling is a fact specific determination
decided on a case-by-case basis.
As the Court stated in its September 22, 2013 Order, this was not a case where Petitioner
was “sitting” on his rights. A finding of tolling is an equitable remedy available to an individual

80

Rec. Doc. 38-1 at 5.

81

Id.
15

who has been pursuing his rights diligently and experienced some extraordinary circumstance
preventing timely filing.82 The Court found that this case presents sufficiently extraordinary
circumstances that would make it unduly harsh to bar Petitioner from having his case considered
on the merits because his petition was two days late because of the lockdown, access to legal
materials and the confusion regarding transfer of Petitioner’s case from the Fifth Circuit. The
alleged “new” evidence submitted by the State is insufficient to meet the State’s burden of showing
that consideration of these “new” facts would probably change the outcome.83
IV. Conclusion
For the reasons stated above, the Court finds that the State is not entitled to reconsideration
on the issue of equitable tolling because the State has not meet its burden of showing that the
“new” evidence could not have been discovered earlier with proper diligence or that consideration
of these “new” facts would probably change the outcome. Accordingly,
IT IS HEREBY ORDERED that “Rule 60(b) Motion for Relief from a Final Judgment,
Order, or Proceeding”84 is DENIED.
NEW ORLEANS, LOUISIANA, this _______ day of December, 2016.
27th

___________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

82

Holland, 130 S.Ct. at 2560.

83

Ferraro, 796 F.3d at 535 (quoting Johnson, 597 F.3d at 673).

84

Rec. Doc. 38.
16